Retired Pima County Superior Court judge John Leonardo sent a lot of people to prison in his long career on the bench. But, there’s one case that still haunts him.
The defendant was Carl Ray Buske, an aviation mechanic with almost no criminal record who was convicted for the possession of 29 printed images of child pornography. Judge Leonardo sentenced him to prison for 290 years. He had to, because Arizona law required his sentence not be less than 10 years for each image.
It was a reprehensible crime that received a disproportionate sentence, Leonardo argues in a recent opinion piece for The Arizona Republic. Now, 17 years later, Leonardo and eight other retired Pima County judges are working with the University of Arizona Law School on an application to commute Buske’s sentence, which is now pending before the Arizona Board of Executive Clemency.
Leonardo is calling on the legislature to change the law that allowed it to happen, and joined The Show to discuss.
Full conversation
JOHN LEONARDO: Well, it was not particularly unusual case and the only thing that makes it unusual is the case is the statute that is charged under which requires such a draconian sentence if you're convicted and the sentences, if you have more than one image, each sentence has to run consecutive one after the other. And that's what makes it so devastating.
LAUREN GILGER: So, I mean, I have to say, like, a lot of people will hear this and say, like, you know, this is a terrible thing. Like child pornography is abhorrent and should be prosecuted and should be punished.
LEONARDO: Well, of course, it's abhorrent and I don't mean in any sense to be an apologist for those who use child pornography. But our system of criminal justice, one of the basic premises of it is that punishment ought to be commensurate and proportionate to the crime that you've committed. And it seems to me that to give somebody in essence, is a life sentence for the possession of child pornography images is way beyond the pale of what would be an appropriate sentence.
GILGER: How does that mandatory sentencing requirement there for these charges in Arizona compare with like what might happen in another state or even from what happens in federal law?
LEONARDO: Yeah. Under federal law, someone who's charged with the same thing, possession and make it. I want to make it absolutely clear here, we're talking about simple possession. We're not talking about somebody who manufactured the pornography or sold it to someone or imported it under federal law, anything of that nature. The maximum sentence that can be imposed is five years, and all of the no matter if you had one image or 100 images, it could be charged as one offense. It is one offense. It's not 100 offenses. So the maximum he would have faced under federal law would be five years in prison.
Many other states, most other states have much less serious penalties for this kind of offense. And it always struck me as odd that if you have a possession offense, in other words, you possess something that's illegal because it's harmful to society and it's harmful to the possessor a lot of times for instance, dangerous drugs. If you possess a dangerous drug, whether it's fentanyl heroin, whatever the offense of possessing is different, it has a different penalty than if you manufactured the fentanyl or you imported the fentanyl or you sold the fentanyl. Those are all higher degrees of culpability because they reflect a greater potential danger to society than the mere possession.
But our child pornography laws in Arizona don't make those distinctions to possess it or sell it or create it or import it the same penalty, which makes no sense to me. And that's where it's not proportionate, right?
GILGER: So you're talking about these mandatory sentencing laws. Can you put that into context for us? Like how common are those kinds of sentencing requirements in Arizona?
LEONARDO: Arizona criminal sentencing has a certain structure to it. And for almost all offenses, the law specifies a range of possible sentences that a judge can impose. Most of the time as a judge in my 19 years as a judge, imposing criminal sentences, I always felt that the range that the law provided was pretty reasonable, not that I always agreed with it. But this, this particular offense has a sentence that's, it's really an embarrassment to me, to the criminal justice system that this kind of a sentence can be imposed for this kind of activity.
GILGER: How do those kinds of sentencing laws get passed? Like is this where politics injects itself and how a judge can carry out these decisions?
LEONARDO: I don't know about the specific legislative history of how this one was passed. But I know from just experience that oftentimes politicians, they want to be seen as tough on crime, especially offenses that relate to abuse of children of any sort. And so I think politics does certainly play a role.
GILGER: Let me ask you about like where rehabilitation comes into that as well as a judge. When you're thinking about sentencing?
LEONARDO: As a sending judge, you usually find three types of people that appear before you in criminal court for sending. One kind is so embarrassed that they, they're at all and it's such an aberration in their life in general that they'll never be back no matter what kind of send you give them. And then on the other hand, there are people who lived outside the law with such disregard for the law their whole lives. It doesn't matter what you do to them, they're gonna continue to violate the law.
And then you have that middle group, which I think is the largest of the three groups where people that can be affected by the sense you give, if you give the appropriate sentence, you may cause them to be rehabilitated, cause them not to commit criminal acts in the future.
But that's a delicate balance because if you give too much, you can break somebody. If you put somebody in prison, they're just going to learn how to commit crimes more effectively than they did before.
GILGER: OK. So let me ask you lastly about what's happening now. So now you are seeking a commutation for this, for this man, for Carl Ray Buske, you and eight other retired Pima County judges. Why do you think it's worth it for you in your retirement to, to push for this, especially for a case, you know that you carried out like you did the sentencing here, right?
LEONARDO: Yeah, I did. And that's a good question. All I can tell you is that for 44 years in my career, both as a prosecutor and as a judge, I was dedicated to achieving justice within the criminal justice system, both in the state and federal systems. And it's really disturbing to me in this case, to have been the instrument of injustice. This to me is clearly an injustice and it's an affront to my sense of justice and that's been my whole career.
